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56 Brook. L. Rev. 731 (1990-1991)
Beyond the New Property: An Ecological View of Due Process

handle is hein.journals/brklr56 and id is 741 raw text is: BEYOND THE NEW PROPERTY: AN ECOLOGICAL
VIEW OF DUE PROCESS
Charles A. Reich*
We live in a society where the economic security of the indi-
vidual is constantly threatened by outside forces. Illness, acci-
dent, inflation or recession may wipe out an individual's re-
sources.  Remote    actions   by   government    or   corporate
management, wholly beyond the individual's control, can leave a
person destitute. Often the victims are children, often the aged,
but any individual can be destroyed in this way. The question is:
how much responsibility should the community take for the pro-
tection of the individual?
The community must choose among three responses. It can
deny social responsibility entirely. It can make economic protec-
tion of the individual a goal, but balance this goal against other
goals which may be given an equal or higher priority. Or the
community can make individual security an absolute right.
Goldberg v. Kelly1 took the middle ground. It was a modest,
moderate decision giving procedural protection to welfare recipi-
ents. Goldberg v. Kelly was only a beginning, but it deserves rec-
ognition as a landmark in the evolution of social justice.
Twenty years later, we must confront the fact that the road
opened by Goldberg v. Kelly has not been taken. Instead there
has been retreat. The goal of individual economic protection has
been weakened, subordinated to other goals, and viewed nega-
tively by powerful elements in society. In Mathews v. Eldridge,2
the Supreme Court limited the Goldberg v. Kelly principle by
holding that an evidentiary hearing was not required prior to the
termination of disability benefits. The Court reached this result
by a balancing test in which what the Court described as the
private interest was weighed against the Government's inter-
est, including the function involved and the fiscal and adminis-
* Marshall P. Madison Visiting Professor of Law, University of San Francisco
School of Law.
1 397 U.S. 254 (1970).
424 U.S. 319 (1976).

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